ADDENDUM 9 TO EXECUTIVE ORDER 01-20, dated April 20, 2020, indicates that liability immunity available under existing law will apply to “Health Care Facilities, Health Care Providers, and Health Care Volunteers” providing “emergency management service[s] or response activity” in connection with the COVID-19 pandemic. It defines “Health Care Facilities, Health Care Providers, and Health Care Volunteers” very broadly, and clarifies how “emergency management service[s] or response activity” would apply to the postponement of elective surgery, utilizing staff outside of their usual specialty, or “crisis standard-of-care measures” such triaging access to services or equipment. But would not apply in cases of “willful misconduct or gross negligence.”
By way of background, Vermont Statutes Annotated, Title 20, Section 20 provides that:
Except in the case of willful misconduct or gross negligence, the state, any of its agencies, state employees as defined in 3 V.S.A. § 1101, political subdivisions, local emergency planning committees, or individual, partnership, association, or corporation involved in emergency management activities shall not be liable for the death of or any injury to persons or loss or damage to property resulting from an emergency management service or response activity, including the development of local emergency plans and the response to those plans.
(emphasis added) 20 V.S.A. § 20(a) (2020). "Emergency management" means:
the preparation for and implementation of all emergency functions, other than the functions for which military forces or other federal agencies are primarily responsible, to prevent, plan for, mitigate, and support response and recovery efforts from all hazards. Emergency management includes the equipping, exercising, and training designed to insure that this state and its communities are prepared to deal with all-hazards.
20 V.S.A. § 2(6) (2020). In turn, “all hazards” are defined as:
any natural disaster, health or disease-related emergency, accident, civil insurrection, use of weapons of mass destruction, terrorist or criminal incident, radiological incident, significant event, and designated special event, any of which may occur individually, simultaneously, or in combination and which poses a threat or may pose a threat, as determined by the commissioner or designee, to property or public safety in Vermont.
20 V.S.A. § 2(1) (2020).
Paragraph 6 of ADDENDUM 9 purports to clarify by “rule” that that “under protections afforded by 20 V.S.A. § 20, Health Care Facilities, Health Care Providers, and Health Care Volunteers would be immune from civil liability for any death, injury, or loss resulting from COVID-19 related emergency management services or response activities, except in the case of willful misconduct or gross negligence.” It does so by making clear that “‘All-hazards” for purposes of the existing State of Emergency means the COVID-19 outbreak in Vermont . . . ,” and that “‘Emergency functions” include[s] . . . services provided by . . . Health Care Providers and Health Care Volunteers.” Most importantly, it defines “emergency management service or response activity” for Health Care Facilities and Health Care Providers to include:
i. Expedited postponement of non-essential adult elective surgery and medical and surgical procedures, including dental procedures, in the safest but most expedient way possible, as ordered by Addendum 3 of the Executive Order, if elective surgeries and medical and surgical procedures are performed at the Health Care Facility or by the Health Care Provider;
ii. Cancelling or denying elective surgeries or procedures or routine care to the extent determined necessary for the health, safety and welfare of a patient or as necessary to respond to the COVID-19 outbreak;
iii. Redeployment or cross training of staff not typically assigned to such duties, to the extent necessary to respond to the COVID-19 outbreak;
iv. Planning, or enacting, crisis standard-of-care measures, including, but not limited to, modifying numbers of beds, preserving PPE, and triaging access to services or equipment as necessary to respond to the COVID-19 outbreak; and
v. Reduced record-keeping to the extent necessary for Health Care Providers to respond to the COVID-19 outbreak.
(emphasis added).
The net result of this rule is to immunize Health Care Providers and Health Care Facilities, which includes all hospitals and State licensed nursing homes, from liability for ordinary negligence that arises from the postponement of elective surgery, utilizing staff outside of their usual specialty, or “crisis standard-of-care measures” such triaging access to services or equipment. The above list is not exhaustive. However, for immunity to apply, there would need to be some connection between the allegedly negligent or wrongful conduct and compliance with the Executive Order, Directives and Addenda. There is also no per se prohibition of malpractice claims that arise from the death of a COVID patient, and immunity would not apply in cases of willful misconduct or gross negligence.
It should also be noted that while the Governor has the general and emergency power during states of emergency “[t]o make, amend and rescind . . . necessary orders, rules and regulations . . . ,” 20 V.S.A. § 8 (2020), and “[t]o enforce all laws, rules, and regulations relating to emergency management . . . ,” 20 V.S.A. § 9 (2020), respectively, there is no clear authority to “clarify” the immunity provisions of 20 V.S.A. § 20. The rule’s application of 20 V.S.A. § 20 to Health Care Providers and Health Care Facilities’ fight against COVID-19 is persuasive. However, it remains to be seen whether the rule has the force of law, and would survive a legal challenge.